’several,’ and sometimes ‘free,’ as in ‘free warren,’ and a right in common with others, usually called ‘common of fishery,’ and sometimes ‘free,’ as in ‘free port.’ A several fishery means an exclusive right to fish in a given place, either with or without the property in the soil” (Malcolmson v. O’Dea, 1863, 10 H.L.). A common of piscary, or “a right to fish in common with certain other persons in a particular stream,” is usually found in manors, the commoners of which may have the right to enjoy it to an extent sufficient for the sustenance of their tenements; but they cannot, except by immemorial special prescription, exclude the lord of the manor therefrom, and have no rights over the soil itself. Decisions also establish that a grant of “fishery” will prima facie pass an exclusive fishery; a grant of soil covered by water or a lease of lands including water will pass the fishery therein; a several fishery will not merge on being resumed by the crown; and a fishery situate within a manor is presumed to belong to the owners of adjacent land, and not to the lord. A several fishery, as already seen, being an incorporeal hereditament, can only be transferred by deed, and therefore cannot be abandoned, and so acquired by the public, even on proof that the public have, as far back as living memory, exercised the right of fishing in the locus in quo to the knowledge of and without interruption from the claimant of the fishery. But to establish a title to a several fishery, a “paper title,” i.e. one founded on documentary evidence only, is not sufficient; it must be supported by evidence of acts of ownership in recent times, for otherwise it will be presumed that a person other than the alleged owner is the real owner. If the waters of a tidal river leave their old channel and flow into another, the owner of a several fishery in the old channel cannot claim to have it in the new one; but, on the other hand, the owner of a several fishery can take advantage of a gradual encroachment by the river upon and into the land of a riparian owner, the limits of whose land are ascertained. The owner of an exclusive fishery, whether in tidal or fresh waters, has the right to take as many fish as he can, and may do so by means of fixed engines or dredging, provided that in navigable waters he does not interfere with the right of navigation, and that in navigable and other waters he does not interfere with the fishing rights of his neighbours or infringe the provisions made by old or modern statutes as to the methods of taking the fish, e.g. by weirs. These were forbidden in rivers by Magna Carta and later statutes, and on the seashore by a statute of James I.; but all weirs in navigable fresh waters traceable to a date not later than 25 Edward III. are lawful, for the statutes forbidding weirs do not apply to navigable waters. It seems, however, that at common law any fixed structures put up by the owner of a fishery in his part of a river, which at all prevent the free passage of fish to the waters above or below, give the owners of fisheries therein a right of action against him. So the grantee of an exclusive fishery with rod and line in an unnavigable river can prevent any person from polluting the river higher up and so damaging the fishery. At common law there is no property in fish when enjoying their natural liberty; the taker is entitled to keep them unless they are caught from a tank or small pond; or except in the case of salmon by statute.
Modern statutes now regulate all fisheries, sea or fresh, in territorial or inland waters. As regards sea fishery in England, the Board of Agriculture and Fisheries has (since 1903, when it took it over from the Board of Trade) power by order to create sea fisheries districts, comprising any part of the sea within which British subjects have, by international law, the exclusive right of fishing, and to provide for the constitution of a local fisheries committee to regulate the sea fisheries in such district, which can make by-laws for that purpose. It appoints fishery officers to enforce them, prescribes a close time for sea fish (which does not include salmon as defined in the Salmon Act), has summary jurisdiction over offences committed on the sea coast or at sea beyond the ordinary jurisdiction of a court of summary jurisdiction, can enforce the Sea Fisheries Acts, or regulate, protect and develop fisheries for all or any kind of shell fish. Special provision is also made by statute for the oyster fishery and herring fishery (applicable also to Scotland), and that of mussels, cockles, lobsters and crabs (applicable to all the United Kingdom). In Scotland the Fishery Board can constitute sea fishery districts, and boards with like powers to those in England, and has general control over the coast and deep-sea fisheries of Scotland; and there are acts relative to herring, mussel and oyster fisheries, and allowing the appropriation of money intended to relieve local distress and taxation towards the encouragement of sea fisheries, and marine superintendence and enforcement of Scottish sea fisheries laws. In Ireland the sea fisheries are under the direction of the inspectors of Irish fisheries, who have replaced the former fishery commissioners and special commissioners for Irish fisheries; special statutes, besides the general ones applying to all the United Kingdom, deal with oyster fisheries and mussel fisheries; and money is also appropriated for sea fisheries under the head of technical instruction. In all three component parts of the United Kingdom there are also special statutes relative to salmon and freshwater fish: for England, the Salmon and Freshwater Fisheries Acts 1861–1907, and the Freshwater Fisheries Acts 1878–1886; for Scotland the chief Salmon Acts are those of 1862–1868, and for trout and freshwater fish those of 1845–1902; for Ireland, the Fisheries (Ireland) Acts 1842–1901. A similar scheme is adopted in each case, namely, fishery districts and district boards are set up which regulate the fishing by by-laws and protect the fish by fixing a close time, and prescribing passes, licences, inspection and the like, breaches of which are punishable by courts of summary jurisdiction. The supreme authorities in each case are—for England the Board of Agriculture and Fisheries, for Scotland the Fishery Board, and for Ireland the inspectors of fisheries, and in England a certain official number of conservators on such boards are appointed by the county councils. The Salmon and Freshwater Fisheries Act 1907 gives the Board of Agriculture and Fisheries power to make provisional orders for the regulation of salmon fisheries or freshwater fisheries within any area on the application of any board of conservators, or of a county council, or of the owners of one-fourth in value of private fisheries. There are also special acts dealing with the fishing in certain rivers, such as the Thames, Medway, Severn, Tweed and Esk. (The act of 1907 applies, however, to the Esk, but not otherwise to Scotland nor to Ireland.) Throughout the United Kingdom the use of dynamite or other explosive substance to catch or destroy fish in any public fishery is prohibited, as it is also in England in any private waters subject to the Salmon and Freshwater Fisheries Acts 1878, in which it is also forbidden to use poison or other noxious substance for destroying fish. Officers in the army or marines are forbidden (under penalty) to kill fish without written leave from the person entitled to grant it. There are also provisions of the criminal law dealing with the protection of fisheries generally, as well as the provisions of the acts already mentioned dealing with special kinds of fish.
Special provision is made by the Merchant Shipping Acts 1894–1906 for sea-fishing boats (except in Scotland and the colonies), relating to their registration, carrying official papers, carrying boats in proportion to their tonnage, the punishment of offences on board, the wages of their crews, and keeping record of all casualties, punishments and the like on board. As regards trawlers, especially in the case of those of 25 tons and upwards, a statutory form of agreement with the crew is prescribed, as well as accounts of wages and discharges; and skippers and second hands must have certificates of competency, which are granted under similar conditions to those required in the case of seagoing ships and are registered with the Board of Trade. Scottish fishing boats are regulated by a special statute of 1886 (except as regards agreements to pay crew by share of profits, dealt with by the above act) and by the Sea Fisheries Act of 1868, which applies to all British fishing boats. Particular lights must be carried by fishing boats in navigation. An act of 1908 (The Cran Measures Act) legalized the use of cran measures in connexion with trading in fresh herrings in England and Wales, the Board of Agriculture and Fisheries being empowered to make regulations under the act.
